On June 28, 2016, the Illinois Appellate Court, Workers' Compensation Commission Division, held that section 8.1b of the Illinois Workers' Compensation Act, commonly referred to as the AMA rating report provision, does not require a party to submit an AMA impairment report for the purpose of determining permanent disability. In Corn Belt Energy, the employer argued that section 8.1b of the Act imposes a requirement that a claimant tender an AMA impairment rating report. The employer maintained that because the claimant did not present an AMA impairment rating report he failed to satisfy section 8.1b's requirements and was not entitled to a PPD award.

Section 8.1b AMA Rating Report

Section 8.1b of the Act was enacted as part of the 2011 amendments to the Act, and became effective for all claims arising after September 1, 2011. 820 ILCS 305/8.1b. According to the provision, entitled "determination of permanent partial disability," "[f]or accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria;"

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. ...

(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. Id.

Although the appellate court addressed one aspect of section 8.1b in its November 2015 decision in Continental Tire of the Americas v. Illinois Workers' Compensation Comm'n, 2015 IL App (5th) 130884WC, the court limited its decision to the singular issue of whether a zero AMA rating report meant that there could be no permanency as a matter of law. The Continental Tire court found that the report, even though providing for a zero disability rating, was just one of the five factors to be considered under section 8.1b(b). To give it the preclusive effect argued by the employer in Continental Tire, the court noted, would violate section 8.1b(b) by giving too great a weight to a single factor. The Continental Tire court did not indicate who bore the responsibility for submitting a report, and stated only that an AMA impairment rating report was to be considered if offered; it did not say who had the burden of production.

The Facts of Corn Belt Energy

The Corn Belt Energy case stems from an August 2012 accident wherein the claimant, James Lind, injured his back while twisting as he exited his work truck on an incline. At trial, the claimant did not offer an AMA rating report into evidence, and neither did the employer. The arbitrator found the claim compensable and awarded three percent of a person under section 8(d)(2) of the Act. The award totaled roughly $10,688.25 in permanent partial disability (PPD) benefits, plus some medical benefits. In rendering his decision, the arbitrator did not address whether an AMA rating report was required or if it was so required, whose obligation it was to obtain and introduce the report. Moreover, the arbitrator failed to address or explain any of the permanency factors set forth in section 8.1b(b).

On review, the Commission affirmed the arbitrator's conclusions and the award of three percent person as a whole, but added language specifically addressing the AMA rating report. According to the Commission, after a "complete reading" of section 8.1b, "a party is not required to provide an AMA rating report for the purpose of determining permanent disability" (Commission Decision, p. 1). "Instead, we find that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all of the other criteria listed, when determining permanent disability" (Commission Decision, p. 1). The Commission then addressed each of the remaining factors of section 8.1b(b), and concluded the arbitrator's award was correct. One Commissioner dissented, finding that "[t]he lack of an AMA report regarding a level of impairment leaves the [t]rier of fact no evidence of level of impairment." He then found the claimant's condition warranted only a one percent person as a whole PPD award.

The circuit court confirmed the Commission's decision and the employer filed for appeal to the appellate court.

Appellate Disposition

In a 4-1 decision, the appellate court held that the express language of section 8.1b(a) does not limit the Commission's ability to award PPD benefits where no AMA report is submitted. In a published decision authored by Justice Harris and joined by Justices Holdridge, Hudson, and Stewart, the majority found the Commission's interpretation of section 8.1b - that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all the other four factors listed in section 8.1b(b), when determining permanent disability - was reasonable. Corn Belt Energy Corp. v. Illinois Workers' Compensation Comm'n, 2016 IL App (3d) 150311WC, ¶ 44.

First, the majority found that section 8.1b did not make submission of a report mandatory. "[S]ubsection (a) of section 8.1b is addressed only to a "physician *** preparing a [PPD] impairment report." Rather, the majority opined, "[i]t sets forth what a physician should include in his or her report and establishes that the report must be "in writing."

Subsection (a) does not contain any language which obligates either a claimant or an employer to submit a PPD impairment report. Additionally, it contains no language limiting the Commission's ability to award PPD benefits when no report is submitted. Corn Belt Energy Corp., 2016 IL App (3d) 160311WC, ¶ 45.

Second, the majority found that subsection (b) of section 8.1b of the Act was addressed "only to the Commission." Id. ¶ 46. The court said that subsection (b) "lists five factors upon which the Commission must base its determination of the level of PPD benefits to which a claimant is entitled ... ." Id. The majority observed, "subsection (b) does not require any action to be taken by either a claimant or an employer. Also, similar to subsection (a), it contains no language limiting the Commission's ability to award PPD benefits in the absence of a PPD impairment report." Id.

The majority continued, "[c]learly, the plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. Rather, the section speaks in terms of what factors the Commission is required to consider when determining the appropriate level of PPD." Id.

The majority noted that its construction of section 8.1b(a) was consistent with its recent decision in Continental Tire of the Americas, where the Court held "[t]he statute does not require the claimant to submit a written [PPD impairment] report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. Id.

According to the majority, "a PPD impairment report may be submitted by either party." Id. ¶ 49. Further, "when one is admitted into evidence, it must be considered by the Commission, along with other identified factors, in determining the claimant's level of PPD." Id. The majority noted, "[n]one of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability. Further, nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party." Id. As a result, the majority rejected the contention by the employer that the AMA report was mandatory.

On the second issue - whether the Commission adequately addressed the factors of subsection (b) when reaching PPD - the majority unanimously held that the Commission had erred:

Here, when awarding PPD benefits, the Commission set forth each of the aforementioned factors in its decision along with the basic facts applicable to each factor. However, the Commission did not explain the relevance or weight it attributed to each factor when determining claimant's level of disability. Thus, we find the Commission failed to comply with section 8.1b(b) of the Act. Id. ¶ 52.

Accordingly, the court reversed the Commission's PPD award and remanded the case for compliance with the Act's requirements.

Justice Hoffman dissented on the issue of whether an AMA report was required, stating that he would vacate the PPD award for failure to present an AMA report.

According to Justice Hoffman:

I do not believe it is possible for the Commission to base its PPD determination on the five enumerated factors unless it has considered each of those factors, including a PPD impairment report. Id. ¶ 60.

Justice Hoffman explained, "Had the legislature intended to make the Commission's consideration of a PPD impairment report mandatory only in those cases where such a report is introduced in evidence, it could have said so. Instead, the legislature enumerated the 'reported level of impairment' as one of the five factors that the Commission 'shall base its determination on.'" Id.

Justice Hoffman argued, "I believe that the statute requires that one be in evidence and considered by the Commission in determining the level of PPD. My conclusion ... is supported by the last sentence in section 8.1 b(b) which states that '[i]n determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.'" Id. Justice Hoffman added, "I believe that this sentence clearly requires that the level of impairment as reported by a physician must always be considered in determining a claimant's level of impairment and the weight and relevance of the other four factors for consideration must be explained by the Commission." Id.

{B}efore the Commission can award PPD benefits, it must consider a PPD impairment report prepared in accordance with the requirements of section 8.1b(a). Stated otherwise, in the absence of its consideration of a PPD impairment report prepared in accordance with the requirements of section 8.1b(a), the Commission may not award PPD benefits. That is not to say that the level of impairment reported in a PPD impairment report is determinative of the issue. I conclude only that such a report must be submitted to the Commission, and the Commission must consider it before making a PPD award. Id. ¶ 61.

Justice Hoffman would have denied permanency.

Implications

Corn Belt Energy means that a claimant is not required to obtain an AMA impairment report in order to establish permanency under section 8.1b. If an AMA impairment report is desired, the employer will have to provide the report. Otherwise, the case will be tried without a report and the Commission's determination of PPD will be based solely on the remaining four factors: the occupation of the injured employee; the age of the employee at the time of the injury; the employee's future earning capacity; and evidence of disability corroborated by the treating medical records.

At this point, the employer in Corn Belt Energy will have 21 days, or until July 19, to file a petition with the appellate court asking for a Supreme Court Rule 315(a) written statement by at least two of the appellate court justices that the case warrants consideration by the Illinois Supreme Court. If that statement is issued, the employer will then have 35 days within which to file a petition for leave to appeal with the Illinois Supreme Court. If a petition for leave to appeal is filed, a ruling by the Court would be likely issued by the end of September or early October and if granted, the case would in all likelihood be argued in the Supreme Court's January 2017 term.

As of last evening, the appellate court had yet to issue its decision in the Central Grocers v. Illinois Workers' Compensation Comm'n case (3-15-0557WC), which raises the identical issue respecting section 8.1b, but one can surmise that the court's ruling on the AMA issue will be the same.

Employers with cases awaiting trial where the claimant has failed to tender an AMA impairment rating report may want to request that any trial be stayed until we see what the appellate court and ultimately the Illinois Supreme Court will do with the petitions for a Rule 315 finding and for leave to appeal that certainly will follow. If the appellate court issues the statement and if the Supreme Court accepts the petition for leave to appeal, a strong case for a stay can be made.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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